HELL AND HIGH WATER: HOW CLIMATE CHANGE CAN HARM PRISON RESIDENTS AND JAIL RESIDENTS, AND WHY COVID-19 CONDITIONS LITIGATION SUGGESTS MOST FEDERAL COURTS WILL WAIT-AND-SEE WHEN ASKED TO INTERVENE.

• Author: Wu, Paloma

Introduction 261 I. Three Ways That Climate Change Can Harm Prison and Jail Residents and, By Extension, Home Communities 261 A. Understaffing 264 B. Deadlier Facilities 267 C. Racial Disparities 275 i. Examples of Racial Disparities in Imprisonment 278 ii. Racial Disparities in Imprisonment Due to Poverty Resulting from Structural and Historical Racism 279 iii. Racial Disparities in Harm Due to Imprisonment 281 II. COVID-19 Prison and Jail Conditions Litigation Provides Insights into How Federal Courts May Respond When Residents Seek Preliminary Relief from Emergent Climate-Related Dangers 284 A. The Clearinghouse Subset: Seventy Prison and Jail Conditions Cases Seeking Relief Related to COVID-19 285 B. Similar Context: An Emergent, Exogenous Threat to Public Health, with Substantially Increased Risk to People Living in Prisons and Jails 289 C. Similar Form: Climate-Related and COVID-19 Conditions Litigants Will Seek Preliminary Relief in the Form of Release or Mitigation 291 D. Similar Content: Climate-Related and COVID-19 Conditions Litigants Will Bring the Same or Similar Legal Claims 295 i. Eighth Amendment and Due Process Clause (Fifth and Fourteenth Amendment) Claims: Conditions of Confinement 296 ii. The Federal Rights of Persons with Disabilities: Non-Discrimination 304 iii. Class-Wide Petition for Habeas Corpus Seeking Relief from Unlawful Conditions of Confinement 309 E. Similar Jurisdictional Hurdles: Climate-Related and COVID-19 Conditions Litigants Must Overcome Prison Litigation Reform Act Barriers to Accessing Courts and Meaningful Remedies 313 F. Overexposed and Under-protected: Black U.S. Residents in Custody in the Fifth and Eleventh Circuits May Be Overexposed to Climate-Related Harms and Underprotected by Federal Courts 318 Conclusion 324 Appendix A 330 Appendix B 331 Appendix C 332 Appendix D 333 Appendix E 334 Appendix F 336 Appendix G 337 Appendix H 338 Appendix I 339 INTRODUCTION

This Article proposes that COVID-19 prison and jail conditions litigation provide insights into how federal courts may analyze future climate-related prison and jail litigation. The global COVID-19 pandemic and the exogenous threats associated with global climate change differ in critical ways. However, both pose grave public health hazards to people worldwide yet pose a greater risk of serious harm to prison and jail residents because they are confined without the physical ability to mitigate on their own or at all. Plaintiffs in both suit types will bring the same claims and types of actions to enforce their right to be free from illegal conditions of confinement or disability-based discrimination. Both will seek preliminary relief. To prevail, both will need to overcome the same thorny jurisdictional and remedial barriers imposed by the Prison Litigation Reform Act (PLRA) or habeas statutes. Observations about outcomes in COVID-19 prison and jail conditions litigation--when considered together with geographic projections of future climate change-related harm that predict the U.S. South will be hardest hit--suggest that prison and jail residents living in the Fifth and Eleventh Federal Circuit Courts of Appeals, who are disproportionately Black Americans, may be particularly disadvantaged when seeking preliminary relief from life-threatening climate-related crises.

The Article first discusses three ways that climate change can harm prison and jail residents, and by extension their home communities, with uniquely adverse impacts in the U.S. South. The Article then provides an analysis of the structure, claims, and relative success of a group of 70 COVID-19 prison and jail conditions cases, filed in 2020 and 2021, seeking preliminary or emergency injunctive relief or release on behalf of multiple persons. The Article concludes that prison and jail residents in most parts of the country will have difficulty using the courts to obtain preliminary relief to prevent climate-related injuries and harms, and that Black Americans in custody in the U.S. South--particularly in states within the Fifth and Eleventh Circuits--are overrepresented within an underprotected population that is uniquely at risk of climate-related harm.

1. THREE WAYS THAT CLIMATE CHANGE CAN HARM PRISON AND JAIL RESIDENTS AND, BY EXTENSION, HOME COMMUNITIES

   Millions of prison and jail residents (1) in the United States are living through an era of record-breaking heatwaves, increasingly destructive

   floods, more frequent and deadlier storms, deeper freezes, and dangerous weather-related infrastructure failures. However, individual prison and jail residents and imprisoned communities are prohibited from engaging in climate-adaptive behavior while warehoused in locked facilities, so they are uniquely vulnerable to climate change-related harms. (2) For example, prison residents cannot prepare for the increased likelihood of episodic resource scarcity or extreme weather conditions by taking basic steps to reduce harm, like planning ahead or getting out of harm's way. They cannot collect and keep emergency supplies or work towards achieving a higher degree of self-sufficiency for meeting their own or their loved ones' basic needs. They cannot plan collectively at the community level to develop mutual aid-sharing plans. Prison facilities are run by prison officials who do not live alongside them and are not accountable to them. Many residents have been stripped of the right to vote while in prison, impairing access to standard political channels to press for their communities' interests at a political level.

   Prison and jail residents are thus prevented from protecting themselves and each other from potentially harmful impacts of climate change, and forced to rely on institutional personnel, structures, and practices that are largely outside of their control. This Article discusses three reasons why: (1) chronic understaffing will worsen in the face of climate-driven occupational hazards and economic pressures; (2) dangerously deteriorating and under-maintained facilities are becoming more deadly; and (3) racial disparities in incarcerated populations are increasing.

   These harms will have wide-ranging impacts, beyond prison walls, in urban and rural communities alike. (3) The United States has the highest incarceration rate in the world and is home to the highest number of incarcerated individuals on the planet. (4) Many prison residents have family at home who need them. The overwhelming majority will return to their home communities from prison, and the conditions they experience inside prisons will shape who they can be for those they come home to. (5) When prison residents are injured, disabled, traumatized, (6) or die as a result of exposure to climate-related impacts, it exacerbates the already overwhelmingly negative intergenerational impacts of incarceration in their homes and communities. (7)

   1. Understaffing

      Understaffing is a root cause of many unconstitutional conditions in prisons. (8) Climate change will make it even harder than it is now to fully staff prisons if projections are accurate regarding shrinking state and local economies. Cash-strapped state governments do not typically increase corrections staff salaries or invest in improving prison conditions to make them safer workplaces, which are the two greatest barriers to successful staff hiring and retention. (9) Many corrections staff positions are dangerous with low pay, (10) sometimes below the federal poverty line," and many are filled by people who are statistically vulnerable to climate-related labor market dislocations. (12) If climate change makes staffing prisons harder than it already is--and in some of the United States's most dangerous prisons, 50% staff vacancy rates are not uncommon--prison residents will suffer harm. (13)

      Prison understaffing causes systems-level breakdowns of core facility operations. (14) These operations include delivery of medical and mental

      healthcare, provision of food and water, execution of suicide prevention protocols, and monitoring and intervention as required for resident safety and facility security. If there are not enough staff to open and close doors, watch and call for help, or escort providers or residents to appointments, a cascade of basic needs goes unmet: ambulances do not get called, medical and psychiatric appointments are missed, medication and meals are skipped, and fires burn unchecked. (15)

      Understaffing also causes increased violence and prolonged lockdowns, which makes entire prisons function like long-term segregation and solitary confinement units. Extended lockdowns due to understaffing may violate the federal rights of people in prison, particularly when restrictions and deprivations amount to conditions of long-term segregation or solitary confinement. (16) Subjecting people in prison to prolonged periods of de jure or de facto solitary confinement creates a known and substantial risk of serious psychological harm that courts have recognized as constitutionally cognizable, finding that conditions of solitary confinement can violate the Eighth Amendment's prohibition of cruel and unusual punishment. (17)

      For prison residents who experience trauma as a result of exposure to chronic violence and isolation, the effects on them and their home communities will extend across both urban and rural spaces as a disproportionate share of U.S. prison residents are from urban areas and a disproportionate share of prisons and prisoners are located in rural areas. (18)

   2. Deadlier Facilities

      Prisons are already prone to flooding, vulnerable to fire, and capable of staying hot, cold, or wet enough to cause residents harm. Facility-related hazards caused by climate-related stress will become more dangerous and disruptive as the frequency and amplitude of extreme weather increase. (19) These dangers include failures at the physical plant level, such as brown-outs,(20) black-outs, and burst water pipes or gas lines; increased...